McKeon announces hearings on Bergdahl swap

posted at 2:01 pm on June 2, 2014 by Ed Morrissey

Allahpundit linked this earlier, but the argument presented by House Armed Services Committee chair Buck McKeon is worth watching and reading in full. Saying that the White House still has not briefed Congressional leaders on the terms of the Bowe Bergdahl swap — and especially on security provisions for the five Taliban figures released from GITMO in exchange — McKeon promised hearings soon to investigate the failure of the Obama administration to follow the law signed by Barack Obama on notification for such transfers. In contrast, Congressional leaders got briefed for months into the much more sensitive operation that eventually killed Osama bin Laden, which makes Susan Rice’s claims of fragility of Bergdahl’s state a little weak for an excuse:

The House Armed Services Committee will investigate President Obama’s decision to circumvent Congress in swapping five Guatanomo Bay prisoners for Arm Sgt. Bowe Berdahl, the panel’s chairman said Monday.

“We will be holding hearings. I’m sorry this is being portrayed as a Republican issue,” Rep. Buck McKeon (R-Calif.) said on MSNBC’s “The Daily Rundown.”

McKeon said Obama “broke the law” by not informing Congress 30 days before he released the five Taliban detainees from Guatanomo and sent them to Qatar. …

McKeon noted that National Security Adviser Susan Rice on Sunday said the deal had been in the works for some time, and said Congress should have been informed along the way.

“I don’t know who they were talking to. I have not been a part of this and I’m the chairman of the committee,” he said.

“Now we’re 72 hours after the fact, and they still haven’t told us how they’re going to ensure that these five, top-level Taliban terrorists are not coming back into the fight,” McKeon said.

“It really is ironic, because this is kind of playing out much like Benghazi, where they kind of do or don’t do something, and then kind of come up with a story afterwards of why they did or didn’t do something,” McKeon said. “This president has a reputation, I think well-deserved, of deciding which laws he’s going to enforce and which laws he’s not going to enforce.”

“We still haven’t heard the details,” McKeon said of the prisoner swap. “We don’t know what they’re doing about these five, how they’re going to keep them out of the fight. We just are in the dark. And this is a violation of the law, no matter what [National Security Advisor Susan Rice] said.”

Allahpundit has a good rundown of the potential political arguments this could raise over the White House’s actions, but let me throw a dash of cold water on the entire enterprise. First, while the House has a very legitimate beef in this case, their overall argument is weak, at least in relation to other instances of failures to engage Congress. In wartime, the executive has the authority to negotiate prisoner swaps, and even had Congress objected to this one there wouldn’t have been much they could do to stop it. In fact, the positions are now largely reversed on executive authority and jurisdiction of detainees from the Bush administration, where Obama and his allies insisted that Bush overreached in creating GITMO and the military commission system. Still, Obama did sign the NDAA with the notification language in it, signing statements or no, and should have abided by it.

However, it’s curious that the House is now attempting to assert its role in a prisoner exchange rather than asserting its role in the commitment of military forces in war. The Obama administration violated the War Powers Act by starting a war against Moammar Qaddafi that had nothing to do with any clear and present threat to the security of the United States, and then refused to ask permission even afterward. That was a far more egregious act and much more offensive to the separation of powers, and yet other than some vocal protests at the time, the House did nothing much to hold the Obama administration accountable for its actions. That war led directly to the collapse of Libya as a functioning state and created the environment in which the attack on our consulate in Benghazi took place. The House is just now getting around to forming a select committee to look into that.

It’s not that McKeon isn’t justified in his outrage, but given the precedent set, it seems a little out of balance. Don’t expect this to produce any real action, either. While it may give the opportunity for angry House members to verbally reprimand members of the Obama administration and air some embarrassing details about Bergdahl’s circumstances and the dangers of the five Talibani released, no one will end up resigning over it. It certainly won’t stop Obama from emptying GITMO — although it may make him a little more circumspect about observing the 30-day notification law in the future. Besides, the 9/11 plotters are still at GITMO and will likely remain there at least until the Obama administration gets around to their military-commission trial.

It certainly won’t stop Obama from emptying GITMO — although it may make him a little more circumspectsneakier about observingviolating the 30-day notification law, one among many this administration has violated or broken in the past, in the future.

Still, Obama did sign the NDAA with the notification language in it, signing statements or no, and should have abided by it.

These “signing statements” are complete bull$hit. Congress should pass a law which makes issuance of a signing statement a “high crime,” and which states that congress will immediately issue articles of impeachment for any president who issues a signing statement in connection with any bill duly passed by congress and signed into law by a president.

If a president believes a bill is unconstitutional as presented, he or she has a remedy: veto the damn thing. If the veto is overridden, then challenge the validity of the law in court. A president simply does not have any right to sign a law, and then disregard any parts of it that he disagrees with.

The Obama administration violated the War Powers Act by starting a war against Moammar Qaddafi that had nothing to do with any clear and present threat to the security of the United States… and yet other than some vocal protests at the time, the House did nothing much to hold the Obama administration accountable for its actions.

That’s because all the leaders are on the record as (more or less) supporting Obama on that. As much as they ever go on the record about anything that is.

He’d love the spotlight, I’m sure. But he’s so out there he gives space cadets, moonbats, and woo-woo in general a bad name. Note how he said his son has to decompress, like a diver coming up from the sea — he’s got to “get the nitrogen bubbles out of his system”. Uh huh! Those nitrogen bubbles, they can kill you. The “bends”, you know. He and to a lesser obvious degree his wife are, well, “different”.

These men were released to Qatar where they will be imprisoned and under the Governments supervision. They also have travel bans for 1-2 years.

Just a couple of days ago I read people saying Obama should do what ever is necessary to free the Marine in Mexico. In this instance Obama does what ever is necessary and those same people are saying “well maybe he shouldnt have done this”

I know people talk in generalities but in real life Obama has to make real life decisions. You cant have it both ways.

To be entitled to prisoner-of-war status, captured persons must be lawful combatants entitled to combatant’s privilege—which gives them immunity from punishment for crimes constituting lawful acts of war such as killing enemy combatants. To qualify under the Third Geneva Convention, a combatant must be part of a chain of command, wear a “fixed distinctive marking, visible from a distance”, bear arms openly, and have conducted military operations according to the laws and customs of war. (The Convention recognizes a few other groups as well, such as “[i]nhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units”.)

Thus, uniforms and/or badges are important in determining prisoner-of-war status; and francs-tireurs, terrorists, saboteurs, mercenaries, and spies do not qualify because they do not always follow the laws and customs of war and therefore they fall under the category of unlawful combatants. In practice, these criteria are rarely interpreted strictly. Guerrillas, for example, usually do not wear a uniform or carry arms openly, but captured guerrillas are often granted POW status.

The Obama administration violated the War Powers Act by starting a war against Moammar Qaddafi that had nothing to do with any clear and present threat to the security of the United States, and then refused to ask permission even afterward.

Fortunately for Obama congress (to cheering applause) wrote a blank check made out to War on Terror.

Should they have done that? No. God, no. But they did, and you can bet any and all presidents will abuse it until such time as congress is smart enough to remember that wars are things conducted on nation states, not abstract nouns.

Congress should pass a law which makes issuance of a signing statement a “high crime,” and which states that congress will immediately issue articles of impeachment for any president who issues a signing statement in connection with any bill duly passed by congress and signed into law by a president.

A signing statement should ONLY be signed, IMHO, when a president vetoes a bill. It should outline WHY said bill is being vetoed, preferably citing the Constitution and why said president believes said bill is unconstitutional.

Attaching a signing statement to a signed bill, outlining reservations about a bill AND stating what provisions a president will NOT enforce the statute just signed into law should be grounds for impeachment. Put succinctly, if a president doesn’t like the bill and/or feel it’s unconstitutional in any way, shape or form, it should be vetoed and the accompanying statement should state in no uncertain terms the objection to the bill AS LEGISLATED.

My con law is a little rusty. Can you cite me the article and section of the constitution that says that, along with the controlling SCOTUS decisions?

myiq2xu on June 2, 2014 at 2:39 PM

“The President shall be Commander in Chief of the Army and Navy of the United States”

Congress has claimed we’re at war with all terrorists everywhere, for all time. That gives the guy invested with great authority in wartime a huge amount of power. Don’t like it? Stop misnaming it a “war” and recognize it’s always been a matter of law enforcement.

The simple purpose of the hearings being promised by the lame duck McKeon is to highlight, yet again, the hypocrisy, mendacity, abuses of power being undertaken by this feckless, narcissistic, ideologue who occupies the Oval Office.

Little will come of this – as Ed noted quite correctly, the President’s decision to ignore the War Powers Act was far more egregious than his hypocrisy on signing statements and the law’s requirement that Congress get’s notified of any deal to release Gitmo war criminals.

But the pattern, and rush of this President’s actions to ‘declare victory’ via surrender, to release jihadi war criminals, to negotiate with terrorists, and appease our enemies highlight the expanding failures of policy and actions by this Administration which weaken our country. That pattern is a factor for this November’s election – and the last effort the people have to attempt to rein in the tyranny that Obama has delivered upon this Republic.

Impeach and arrest that trasonous a$$hat in the oval orifice and stand that traitor, just returned, up against a wall. He is guilty of desertion and treason during a time of war. The alleged POTUS is also guilty for another in a blatant act of giving comfort and aid to the enemies of our country.

This swap was strategically insane and IMO morally foul (like the one the Israelis did releasing a large number of dangerous killers for one soldier). A soldier understands that he is expendable in the line of duty and for his mission. Such swaps IMO should be roundly condemned.

The GOP should be twisting Dem arms and coming before the public with all of this illegality. There must be a few Democrats who have to see what a dangerous precident this sets for the country. If not we are doomed. If ever a President deserved impeachment its this one.

I wonder if this so-called demonstration is just smoke and mirrors. Unless the House (attention Mr. Speaker) is prepared to really demonstrate to this administration that they have crossed a line, then all of this is just posturing.